Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, I find myself very much in sympathy with the sentiments that lie behind both the amendments. I agree with everything that was put so clearly and in such a balanced way by my noble friend Lord Wigley. In relation to Amendment 175, it could be said that one is dealing with two sets of reports from two different agencies. In so far as anything deals with the criminal history of the defendant, even though it may not be the subject of a conviction, it belongs to the area of antecedents and to the agencies responsible for those. In other words, a bare statement of conviction on a certain date giving the detail of the conviction but no more would be very inadequate if it did not give the sentencing court—whether it be a magistrates’ court or a Crown Court—the background which is so essential for it to decide an appropriate sentence. Both the agencies concerned—the probation service and those who prepare antecedent reports—are heavily overstrained. That, it seems to me, is the real problem with which one is dealing. These people dearly wish to devote much more time and effort to the preparation of a report but are simply unable to do that due to the exigencies which exist. Everything that has been said in relation to dependants by the noble Lord, Lord Wigley, and those who support the amendments is corroborated by what I have seen over the years as a solicitor, barrister and judge. There are two stages when a court has to consider whether or not to impose a custodial sentence. First, it has to decide whether the gravity of the offence in all the circumstances of the case brings it over the bar, as it were, to the point where a custodial sentence is appropriate. Having decided that, it then looks at all the other circumstances of the case. Very material to that consideration will be the situation of dependants. It may well be argued, therefore, that it is not necessary to have the amendment, but I urge the Government to take a different view as it would help to concentrate the mind of the sentencer in that direction. Any wise sentencer—magistrate or judge—knowing that young children may have to go into care or be dealt with in some other way, will have to look at the totality of the situation, having decided that it is an appropriate case for custodial sentence. In other words, the sentencer has to ask whether the totality of the situation is such that the community and the interests of justice are best served by a person going to prison or avoiding prison in some way or other. It is not a question of what the person deserves because that is a narrow, tunnel-vision approach to the whole matter; it is a question of what is proper and just for society and all concerned. I am sure that it is a precept for the wise sentencing court—magistrate or judge—to ask for a full report from the care authority regarding what exactly will happen to children in the event of a custodial sentence being imposed.